Magistrate Tabally of the Kanifing Magistrates’ Court on 26 July 2011, upheld a no-case submission filed by Lawyer Ousainou Darboe in defence of his client, Lamin Dibba, charged on three counts of stealing.
In his ruling, the trial magistrate told the court that the accused was charged with three counts of stealing by clerk, contrary to Section 258 of the criminal code.
He stated that the particulars of offence on count one disclosed that the accused on 3 December 2008, at Standard Chartered Bank Serrekund Branch, in the Kanifing Municipality, being employed by Project Aid the Third World as manager and by virtue of such employment, stole D95,000, the property of Project Aid the Third World.
On count two, stated the magistrate, the particulars indicated that the accused on 2 February 2009, at the same bank, being employed by Project Aid the Third World as manager and by virtue of such employment, stole D200,000, the property of Project Aid the
He also indicated that on count three, the particulars alleged that the accused on 3 May 2010, at the same bank, being employed by Project Aid the Third World as manager, and by virtue of such employment, stole D35,000, the property of Project Aid the
Furthermore, he said, the accused pleaded not guilty on all the counts and in an effort to discharge its burden of proof, the prosecution called three witnesses.
Magistrate Tabally further stated that at the close of the prosecution’s case, learned counsel for the accused promptly submitted that the accused “has no case to answer”.
“It is trite law that at the close of the case for the prosecution, the prosecution must make out a prima facie case against the accused,” he said.
He added that the accused was called upon to open his defence.
If however there is no evidence to prove an essential element or ingredient of the offence charged or the evidence of the prosecution had been so discredited as to be unreliable for conviction, the accused ought not to be called upon to open his defence, he noted.
In the present instance, he added, the prosecution after calling three witnesses did establish that the accused was the manager of the complainant and was one of the signatories to some of the accounts of the complainant.
He revealed that they led evidence that funds were withdrawn from the account on the instruction of the accused and that the accused was not in the employment of the complainant when the alleged theft was uncovered.
“In criminal trials, the prosecution must prove the guilt of the accused beyond all reasonable doubts. In this case, the prosecution did not establish to the court’s satisfaction that the accused stole the monies withdrawn,” the trial magistrate told the court.
He therefore upheld the no-case submission on the basis that the prosecution has failed to prove a prima facie case against the accused.
He consequently discharged and acquitted the accused.
